Sunday, July 12, 2009

Forensic science and human rights: the challenges

"30 years ago Sir Robert Megarry VC in Malone v Metropolitan Police Commissioner1
said that if something “can be carried out without committing any breach of the law it
requires no authority by statute or common law; it can lawfully be done simply
because there is nothing to make it unlawful”. In that case he was talking about
telephone tapping. Had the issue arisen more recently he might have been talking
about CCTV or retention of biodata.
Sir Robert said what he did because, following the nineteenth century constitutional
lawyer AV Dicey, he considered this to be “a country where everything is permitted
except what is expressly forbidden”. Their approaches ignore the special position of government officials. They do not recognise that the power of government officials to
act depends on statutory authority and that the institutional position and de facto
power of government officials may justify their being subjected to greater restrictions
than ordinary citizens. Modern examples of such de facto power include the ability
of the state to erect a network of CCTV cameras in a city centre or on a motorway, to
track the movements of an individual using signals from his mobile telephone, and
other manifestations of what the Information Commissioner and the House of Lords’
Constitution Committee have called a “surveillance society”.2
Things have changed in the 30 years since the decision in Malone’s case. Common
law rights such as the right of access to an unbiased and independent court or
tribunal, the right to property, and the right not to be detained capriciously have been
recognised as fundamental.3 Our rights under the European Convention on Human
Rights (the “ECHR”) have been brought into our domestic law by the Human Rights
Act 1998. The result is that those embarking on a legal career today would find Sir
Robert’s approach to the position of a public authority extraordinary. But the mindset
underlying his approach has not vanished altogether. It bears a similarity to some of
the approaches to the possibilities open to the state today as a result of technological
and scientific developments.
My topic this evening concerns the intersection of forensic science and human rights.
It is a big topic and I shall only deal with a small part of it. Forensic science may
impact on a number of the rights under the ECHR, but the human right I am
concerned with today is the right to respect for private life in Article 8. Privacy, and
thus the right to respect for private life, can be more vulnerable in the modern world
as a result of technical and scientific developments. Developments such as a system of CCTV cameras and a DNA National database have the capacity to narrow the area
of an individual’s autonomy and privacy. This area may also be narrowed as a result
of an increase in the role of the state. In his book, Genetic Privacy, Graeme Laurie
said that one of the greatest threats to individual privacy in the last century has been
the development of a public interest in the welfare of individuals. The state has taken
responsibility for basic services, such as housing, subsistence, education, and health
care. Notwithstanding the attempts since 1979 to “shrink the size of the state”, the
state’s legal responsibilities and the very significant financial burdens upon it have
led to the development of a position in which the state considers it has an obligation
to guide individuals to prudent behaviour that is considered to be of benefit to the community, for example in relating to smoking, consumption of alcohol and the
wearing of seatbelts in cars. It is this position that Laurie sees as threatening
individual privacy and autonomy.
Within forensic science, the development that has led to most discussion in recent
years has centred around DNA. This is understandable. The UK has been the
scientific pioneer in this area. The position in England, Wales, and Northern Ireland
(but not, as we shall see, in Scotland) has, broadly speaking, been that all
bioinformation taken from those arrested is retained indefinitely whether or not the
person providing the sample was subsequently convicted or even charged. At present
volunteers who have given bioinformation, for example in mass screens, have no
right to have it removed from the database. Chief Constables, however, have
discretion to destroy the samples and profiles of both those arrested and volunteers
in “exceptional circumstances”.
Our National DNA Database is the largest database in Europe. In March 2007
approximately 4 million people were on it.4 The figure included over a million
children. 5By March 2009 the figure had risen to some 5.1 million people,6 over 7% of
our population. The comparable figures for France and Germany are respectively
approximately 856,000 people, 1.44% of the French population, and some 611,000
people, 0.74% of the German population.7
There are notable examples of the use of DNA both in detecting crime and in
exonerating individuals. So, for example, a number of “cold” cases of murder and
rape have been cleared up, sometimes years later, when an individual is arrested on
another matter and a sample taken from him which implicates him in the unsolved
crime.8 Again, as shown by the cases of Stefan Kisko and Sean Hodgson, DNA can
exonorate.9 The European Court of Human Rights (the “ECtHR”) has recognised the
“rapid and marked progress [of member states] in using DNA information in the
determination of guilt or innocence”.10
The potential uses of DNA material of course go far beyond the prevention and
detection of criminal activity with which many members of the British Academy of
Forensic Science (hereafter “BAFS”) are concerned. Issues of genetic privacy arise in
the context of health care, insurance, and personal identity.11 There is a natural and
understandable desire to make full use of technological and scientific developments
in combating disease and crime, and improving our quality of life. But, equally
understandably, there are also sensitivities about the retention and use of such
material by public authorities and companies whether or not the material is retained
in order to assist in the prevention and detection of crime.
It is clearly justifiable to retain and use DNA material for the overall good of society,
whether by enhanced screening for disease or by creating a method of deterring and
detecting crime. But should the increased power of technology and science be
balanced by a greater sensitivity to the need to protect legitimate areas of “privacy”
and “autonomy”? No one argues against a balanced approach. It is recognised to be
necessary in order to maintain public confidence in systems, to ensure fairness and
appropriate autonomy to individuals, and to provide a method of identifying and
correcting error. But there is controversy as to what constitutes a balanced approach."

He goes on to look at the S. and Marper case (where the UK lost in the ECHR on the issue of retention of DNA and fingerprints) in one of the most comprehensive clear minded analyses of the issues I've seen anywhere. Highly recommended. Caspar tells me that the honourable judge also wrote the first human rights QC’s Opinion for FIPR pro bono in 1999 http://www.fipr.org/ecomm99/ecommaud.html).

Update: The Tech and Law blog has picked up Judge Beatson's speech too.